Employer preoccupied with prison guards balking at showing up for work
An Ontario correctional officer’s work refusal due to health concerns on a day when the employer was short-staffed and occupied with many refusals should have been investigated promptly, but the employer’s failure to do so was understandable, an arbitrator has ruled.
The correctional officer was hired by Correctional Services Canada (CSC) in 1989 to work at the Elgin Middlesex Detention Centre (EMDC) in London, Ont.
The officer had sinusitis — an inflammation or swelling of the tissue lining the sinuses — which made her extremely sensitive to second-hand smoke, dust, and other air contaminants.
CSC was aware of the officer’s condition and that it made her sensitive to smoke. Though the detention centre was a non-smoking facility, inmates smuggled contraband cigarettes to use, resulting in second-hand smoke sometimes being present.
Smoke was a bigger problem on the weekends, as “intermittent inmates” who served their time on weekends often brought in and smoked cigarettes in their unit.
The officer had an accommodation agreement with CSC that stipulated she wouldn’t be scheduled to work night shifts and she wouldn’t be assigned community escorts.
In addition, if she detected any smoke in the unit where she was working, she was to inform management and attempts would be made to re-assign her to another area of the institution.
In early September 2014, there was a period of labour unrest at EMDC after nine employees were disciplined.
This period featured several work refusals and sick calls by employees, leading to a lockdown where managers from other institutions had to come to the EMDC to keep essential operations going.
Things got particularly bad on Sept. 7, when sick calls and refusals resulted in only 32 correctional officers reporting for work instead of the usual 58.
The correctional officer in question was scheduled to work her usual post in the EMDC’s unit seven from 7 a.m. to 7 p.m.
However, because of the staff shortages, it was decided to staff the unit with managers and relocate non-management staff to other areas.
The officer was re-assigned to unit nine, which consisted mostly of worker inmates. The officer exercised her right to refuse work due to safety concerns because she believed she would be exposed to second-hand smoke and other air contaminants in unit nine.
The officer was directed to wait in the lunchroom while management dealt with her work refusal, but they were preoccupied with the mass-work refusals tied to the labour unrest.
Work refusals relating to the necessities for inmates took priority and, as a result, the officer’s refusal was a low priority.
After waiting for several hours and hearing nothing from management, the officer contacted the Ontario Ministry of Labour, which advised her it would contact CSC to recommend moving forward with a stage one meeting.
After 4 p.m., a supervisor realized the officer’s work refusal was still ongoing and met with her in the lunchroom.
The officer explained the reason for her work refusal and said she hadn’t gone to the unit or been exposed to smoke. She was then advised that a stage one meeting would be held when there was an opportunity to do so, so the officer continued to wait in the lunchroom.
Later that day, the superintendent advised the officer and others participating in work refusals that there would be no overtime payments for employees who overstayed their shift to pursue work refusals.
If the circumstances of the work refusal still existed when she returned for her next shift, then she could re-activate her refusal.
However, the officer was still at the institution at 9:30 p.m. when she was told CSC still hadn’t contacted the ministry and she should leave.
The officer signed for overtime from 7 to 9:30 p.m. and was paid for these hours due to an administrative error.
The labour unrest was resolved on Sept. 9 and the officer reported for her next shift on Sept. 10. She was back at her regular unit, so the basis of her earlier work refusal was no longer present.
The union, Ontario Public Service Employees Union (OPSEU), filed a grievance claiming CSC violated the collective agreement, the Ontario Human Rights Code, and the Ontario Occupational Health and Safety Act by failing to investigate her work refusal and management engaged in “systemic bullying” during her work refusal because of her accommodation.
It also claimed CSC violated the accommodation agreement by assigning her to a different unit than that which was agreed to in the accommodation agreement.
OPSEU demanded $1,000 for the officer for the violation of her rights.
Arbitrator Ken Petryshen disagreed that the accommodation agreement required CSC to only assign the officer to unit seven to avoid potential air contaminants.
The reality was that CSC was only required to assign her to posts that were consistent with her medical restrictions, not a specific unit, said Petryshen.
Petryshen also found that the way CSC handled the officer’s work refusal was not harassment. While it wasn’t ideal, it was “solely attributable to the operational pressures confronting the employer on that day,” and not due to any bad faith on CSC’s part, said Petryshen.
However, despite the fact it was reasonable for CSC to give priority to work refusals that impacted the health and safety of inmates, it wasn’t reasonable to push the officer back in favour of the mass- work refusals it also prioritized.
The officer’s single refusal was not complicated and could have been addressed with a quick investigation before the end of the shift, said Petryshen.
Given the lack of bad faith on CSC’s part, the “significant pressures” it faced that day, and the fact the officer was still paid for overtime — which CSC didn’t seek to recoup — Petryshen didn’t think any additional remedy was necessary except for a declaration that CSC’s failure to investigate the officer’s work refusal was unreasonable and a violation of the Occupational Health and Safety Act.
There was no violation of the collective agreement or Human Rights Code.
For more information see:
• Ontario Public Service Employees Union (Gough) and Ontario (Minister of Community Safety and Correctional Services) (Dec. 21, 2016), Ken Petryshen – Arb. (Ont. Grievance Settlement Bd.).
